For some families, setting up the distribution percentages in your estate plan, whether contained in a revocable living trust or a will, are very simple. In those straightforward cases, the plan will likely call for your entire estate to go to your spouse upon you death and, upon his/her death (or if he/she predeceases you), then in equal proportions to each of your children. In other families, the distribution instructions are not so simple. Regardless of the reason, if you have unequal or other unusual distributions you desire to make to your loved ones in your estate plan, it is important to create a plan carefully and thoughtfully, and to communicate with your family about your estate planning goals to avoid the potential problems that can come with a surprise that only comes to light after you're gone.
While it is almost always a good idea to avoid leaving the fate of your estate in the hands of a decades-old law drafted by the legislature of the state in which you live, intestacy laws can be instructive in a certain way. For instance, consider the distribution rules for intestate estates. They call for a deceased person's intestate estate to go to some combination of the surviving spouse and/or the surviving children. If the children inherit a part (or all) of the estate, they each take an equal share. These laws exist because, historically, that's the way that many people, when they decided to create a will or other estate plan, would divide up their wealth.
But in real life, especially today, things can be more complicated. Perhaps, as you are contemplating creating a plan, you have a combination of children and stepchildren. Maybe you have a mixture of children with whom you are very close and children with whom you have virtually no relationship. Alternately, maybe you have some children who have always been very financially independent while others have required a greater degree of monetary help from you. Any of these situations might motivate you to decide to create an estate plan with uneven distributions.
One circumstance where you may want to give very careful thought to creating an unequal distribution is if one of your children has special needs. If your family is in such a situation, you will likely want to consider creating a special needs trust for that child. You may have certain assets that may make sense to fund into that trust (such as your house if the child with special needs still lives at home.) This goal of taking proper care of that child with special needs may mean giving him/her a larger share of your wealth, especially if his/her other siblings are financially well-off.
Another situation facing some families that can be potentially thorny is the total disinheritance of a child. If you make such a decision, it is important to ensure that you word your estate planning documents carefully. The law allows a child who is left nothing and not mentioned in a parent's plan documents to argue to a judge that the parent merely omitted, or forgot, to include a distribution to him/her. In that case, the child may receive the percentage called for by your state's intestacy laws, which could be quite large, depending on your family situation. Whether you decide to leave this child $0, $1 or some other nominal amount, it is important to acknowledge the child's existence in your plan. Your estate planning attorney can guide you in mentioning this child in the proper way.
Once you've made a decision to create an uneven distribution, it is important communicate with your family whenever possible. Conveying your reasons now may avoid problems down the road. Your reasons are valid and your distribution choices are yours to make, but a child or other relative whom you've scheduled to receive a reduced portion may not be expecting this result and, sometimes, loved ones met with such an unexpected, unexplained and surprising result may respond by launching a lawsuit in court to challenge the legal validity of your plan. Communicating now may lessen the shock and reduce or eliminate the chance of court involvement.
While communicating directly with your loved ones during your lifetime about the reasons for your distribution decisions is, if feasible, often a good idea, you should be very careful about conveying the reasons for your choices in your estate planning documents. When creating your plan documents, it is wise to discuss the inclusion or exclusion of such explanations with your estate planning attorney. An experienced estate planning attorney can describe for you the advantages and drawbacks of putting in, or taking out, such explanations. In some cases, the inclusion of too much explanatory language can potentially be harmful, as it may give a disgruntled loved one greater ammunition in a court challenge.